Court Shuts Down Zediva: Apparently The Length Of The Cable Determines If Something Is Infringing

from the the-insanity-of-copyright dept

A few months ago we wrote about the new online movie rental site, Zediva, noting how it demonstrated some of the ridiculous nature of copyright. That's because Zediva worked by setting up a single DVD player with the DVD of the movie the user wanted to rent being put into that player, and then streamed from that player. In other words, their argument (based on the Cablevision ruling), was that as long as they were doing the same basic thing that a customer was doing in their homes, but with the physical device in a central location, it should be legal. To put it more simply, the fundamental question is whether or not the length of the cable matters in determining whether something is infringing or not. If the cable is just a few feet from your DVD player to your TV, that's legal. But if the cable is much longer, as the DVD player lives in a data center, would it suddenly no longer be legal? The Cablevision ruling said no.

The whole setup of Zediva should show you how silly modern copyright law is. It's technically relatively easy to distribute movies online, but Zediva had to set up this convoluted and ridiculous process of reserving DVD players and DVDs for each customer in a (so far, failed) attempt to stay within the law. But the end result goes even further in showing how ridiculous copyright law is. Basically, the judge admits that the length of the wire defines copyright. That's insane when you think about it. If the wire between my DVD player and my TV is 10 feet... legal. If it's miles... infringement. How can people respect a law that leads to such results?

The judge's reasoning strikes me as equally twisted. For example, it claims that Zediva violates the "public performance" right under copyright law. Not surprisingly, the judge relies on the (similarly terribly decided) On Command Video Corp. v. Columbia Pictures, which ruled that a hotel similarly showing movies in rooms from a central system was "transmitting" the works, thus making them a public performance. But this has a little itty bitty problem: the "transmission" is over a wire, and under that definition, you're also transmitting if you play a DVD player in your own home. It's the same physical thing other than the length of the wire.

Now how the hell is viewing a DVD in the privacy of your own home a "public performance?" Again, the court's reasoning is twisted. You'll love this:

Customers watching one of Plaintiffs’ Copyrighted Works on their computer through
Zediva’s system are not necessarily watching it in a “public place,” but those customers are nonetheless members of “the public.” .... The non-public nature of the
place of the performance has no bearing on whether or not those who enjoy the performance
constitute “the public” under the transmit clause.

Yes, you read that right. Again, how can you take copyright law seriously when it's interpreted that way? Under that definition, pretty much anything is a public performance.

The court also brushes off the Cablevision decision in a footnote, claiming that that case was different because each person viewed a single digital copy, whereas in this case... since it's a DVD, it's now being transmitted to the public. I honestly read this section four times, and I have no idea how that distinction matters. At all. Even they seem to quote the Cablevision case, saying that they don't understand why there's a difference here, but there is.

Under the facts of that case, the Second Circuit found that the transmissions were
not “to the public” because “each RS-DVR playback transmission is made to a single subscriber
using a single unique copy produced by that subscriber.” Id. at 138. (“Given that each RS-DVR transmission is made to a given subscriber using a copy made by that subscriber, we conclude that
such a transmission is not ‘to the public.’”). In this case, unlike Cablevision, Defendants’
customers do not produce their own unique copy of Plaintiffs’ Copyrighted Works. Instead, like On
Command and Red Horne, the same DVD is used over and over again to transmit performances of
Plaintiffs’ Copyrighted Works. As the Second Circuit held in Cablevision, while “neither the Red
Horne court nor Prof. Nimmer explicitly explains why the use of a distinct copy affects the transmit
clause inquiry,” its “independent analysis confirms the soundness of their intuition: the use of a
unique copy may limit the potential audience of a transmission and is therefore relevant to whether
that transmission is made ‘to the public.’”

But it seems to me that this pushes the weight in favor of Zediva, since it's only using a "single copy" as well -- a single copy of the DVD. That would suggest an even stronger argument that the transmission is not to the public -- only one subscriber can view each copy at one time at their single location. How can you twist that into claiming it's a "public performance"?

Honestly, the real issue here is the very nature of copyright law itself, which is patched up with duct tape each time some new technology hits the market. The internet has merged together a variety of these technologies into one, so different parts of the law are clashing, and out of it we're getting ridiculous decisions like this, which only serve to show how broken copyright law is. When the real result of a lawsuit depends entirely on the length of a cable, the law is fundamentally broken.

The further they go to try to skirt the law, the more likely judges will find that they are infringing. They tried very hard to stay just outside of the scope of the law, but in doing so, make it clear what their intentions were.

Re: Re:

Their intention isn't to follow the law, it was to try to live inside the loopholes and dead spots created over the years by court cases and judgements. It was an attempt to stretch an acceptable use to it's breaking point.

It's not "trying to stay in the law", it's sitting right on the border of being illegal and hoping like hell that you don't get caught. They failed, thanks for playing.

Re: Re: Re:

There is no "border of being illegal", either something is illegal, or it isn't. When you rule something that was once legal is illegal, you just took the rights away from an untold amount of people. Is it worth it? Sometimes. Is it worth it in this case? Absolutely not. And you are a blind fool if you think that, somehow, someone trying to start a business based on something that was legal when they started it but ruled to be illegal, is somehow 'skirting the law' instead of following it exactly as it was ruled.

Re: Re: Re:

Doesn't matter. If their actions aren't *actually* illegal, then what they're thinking is irrelevant.

> to try to live inside the loopholes
> and dead spots created over the years
> by court cases and judgements

That's a matter for Congress to address. If their actions abide by the law as written, then there's no violation.

> It's not "trying to stay in the law", it's
> sitting right on the border of being illegal

It doesn't matter how close they get to the border. If they're still on the legal side of it, then what they're doing is legal. That's why they call it a border. It separates what's legal from what's not. There's nothing on the legal side that's illegal *by definition*.

Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re:

No they are not, a judge has NOT said it is illegal or unlawful all the judge stated (actually opined) is that it more than likely has infringed, based on the judges interpretation of the evidence before him, and that the judge ordered a cease and desist whilst the actual case is ongoing.

If the judge after the case comes to a conclusion finds based on precedents, and balance of probabilities that Yes it is infringing it still wont be illegal since illegal means criminal. It might at the most be an unlawful act but thats it. If the judge finds that no it hasn't infringed, then the respondent can then ask for costs and maybe damages for original cease order (though this is VERY rare)

Re: Re: Re:

"Their intention isn't to follow the law, it was to try to live inside the loopholes and dead spots created over the years by court cases and judgements."

I'm sure you're very proud of your rhetorical skills, but ultimately your statement is full of emotion and empty of meaning. Zediva's intention was to continue to operate without breaking the law. If that means relying on "loopholes and dead spots", then that is what they must do to run their business legally. Whether or not they were behaving ethically is quite a different matter, but I dare you to point out how what they were doing is in any way unethical.

Re: Re: Re:

No. MAFIAA failed. Again.

Suddenly I feel the urge to buy a 4000 mile cable, connect to my dvd on the west coast of the US and watch a rented DVD at a TV on my apartment in the east coast playing from the west coast DVD. Me alone. But according to this judge I'm playing it to Barcelona fans all around the world. Along with all Chinese. And maybe the rest of the world.

My grandma can see there's no difference in watching the DVD at your player or at an internet connection that acts as the cable between the player and your tv... And she's almost 90.

You are a brainless troll sonny, you need serious brain transplant before you start posting anything useful here.

Re: Re: Re: Re:

To be fair, the difference in your example is that your personal hook-up is available to you and only you, making it a private performance. Zediva's hook-up is available to any member of the public, making it a public performance in the eyes of the law [regardless of the fact that the actual performances are ultimately to private audiences].

Re: Re: Re: Re: Re:

Whups! If the hookup is only available to one destination, then it's private. It's no different than a TV or radio station's Studio-to-transmitter link. And some stations have started using internet and internet-like connections (Audio-over-IP); but it's still a closed circuit. This judge needs someone to teach him the difference between a closed circuit link and unicast/multicast. Just because it happens to be over a virtual circuit rather than a dedicated copper (or fiber) circuit doesn't change the nature of the feed. I suppose this judge would also rule that radio and TV stations' remote broadcasts (news feeds or otherwise) are "public", even though the FCC rules specifically state otherwise....

Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re:

Zediva's hook-up is available to any member of the public, making it a public performance in the eyes of the law [regardless of the fact that the actual performances are ultimately to private audiences].

No, you seem to be confused. The hook-up is only available to the person renting it. It's not like once someone, somewhere has paid for it that it then becomes "available to any member of the public". At least not by Zediva. If the person renting it then further makes it available to the public, then that's a separate issue and something the renter may be liable for. Or at least that's the way it used to be.

Re: Re: Re:

Their intention isn't to follow the law, it was to try to live inside the loopholes and dead spots created over the years by court cases and judgements. It was an attempt to stretch an acceptable use to it's breaking point.

Plainly their intention WAS to follow the law. If not they wouldn't have gone to all that trouble.

What they didn't want to follow is your idea of what you would like the law to be.

Re:

The further they go to try to skirt the law, the more likely judges will find that they are infringing. They tried very hard to stay just outside of the scope of the law, but in doing so, make it clear what their intentions were.

So now the police will give you a ticket for doing 29 in a 30mph zone - because clearly you intended to break the limit and you made your intentions clear by going so close to the limit.

Re: Re: Re:

Re: Re: Re:

"if you were caught doing 29 in a 30, then you were probably drifting over 30 every now and then"

Dammit, arrest everyone who owns (or has ever owned) a car for 'probably' having the potential for breaking the law.

OR

Yes they probably have drifted over 30, in a 50 limit area for instance?

Does this AC REALLY think that coming close to breaking the law is the same as actually breaking the law?

If you're in a shop, you select some items, you stand in line at the register while the person in front gets served, are you breaking the law because you could probably (but don't) walk out of the door without paying?
What if you walk into a bank, I mean, potentially everyone that goes in there could attempt a robbery, best that we arrest all of those too. In fact, lets arrest everyone for potentially being able to break every law, that makes perfect sense...

Re: Re:

That schmuck will never realize how stupid he is, even if you pimp-slapped him into a whimpering puddle of shitpiss every time he proved it, which by now must be in excess of hundreds of times daily. Let Little Petey Pissy Pants have his screech, as nothing seems to convince him that he is, in fact, an incurable, congenital idiot.

Re: The further they go to try to skirt the law....

"The further they go to try to skirt the law, the more likely judges will find that they are infringing. They tried very hard to stay just outside of the scope of the law, but in doing so, make it clear what their intentions were.

The further you stretch, the more you leave yourself open."

What? The twisted their business model to fit INSIDE of the law not skirt it. Are you being sarcastic?

Their business model was simple. If you want to watch a movie, you rent one or their DVD players and you rent a DVD. They put the DVD in the DVD player for you and hit play. You then watch the rented DVD on your screen. What law were they trying to skirt?

Really??

The thought police are on it boys, open fire on them thar pirates and freetards who be paying for what was once a legitimate service and business model. We be changing the rules mid-sail and you'll be sleeping with the fishes because we don't quite fancy the cut of your jib swabby!

This makes me want to go out and buy a giant industrial spool of cable to put between my DVD player and TV just out of spite for the ignorance on display that is supposed to be the justice system in this country.

If the wire between my DVD player and my TV is 10 feet... legal. If it's miles... infringement. How can people respect a law that leads to such results?

The simple answer is they don't. And history has shown time and time again that people don't just ignore a bad/unfair part of a law when they deem it so, they ignore the law altogether or become so paralyzed by it that they fail to risk any trespass upon it.

So now we're coming to the point where people are either not producing content out of fear of litigation or suit, or they are completely ignoring copyright altogether - even the good parts of it.

Re: Re: Are *all* DVD rentals now illegal public performances?

Its not just copyright judges. Most people make their conclusions, then look for evidence to support it. You and me do the same thing too- only we're the ones who are RIGHT, and JUST.

I don't necessarily believe the judge made the right decision, but courts have an interest in making laws easily definable and applicable. Sometimes a precedent is made simply to be struck down in a different way later. Keep in mind this is an appellate court, which implies that someone had an issue with the court proceedings in the original lawsuit. Rarely are appellate court decisions handed out based on "I didn't like the outcome".

Respect

How can people respect a law that leads to such results?

Answer is: they don't. No one respects copyright law. they either use it and twist it into a vague characature of itself to protect their rents, or like the pirates, ignore it completely because it doesn't make any damn sense.

Not even judges respect the law. Here we have a judge that doesn't like how creatively Zediva set up their model to be in compliance, so he twisted it back around and made stuff up. He doesn't like this loophole, so he rewrites copyright law to close it.

how can you take copyright law seriously when it's interpreted that way?

You can't. And no one does. Copyright is either something to ignore, or it's your hammer and the world is a nail.

Boiled down: a "public performance" is any on a PUBLIC DVD player.

Not one's own private DVD player. Cutting through the daffy legalistic bafflegab that lawyers lard up reasoning with no matter how and obvious the facts are, that's what this court and the other "intuited".

Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

I think the odd sentence structure in the second sentence was more difficult than the words themselves. His use of quotation marks on "intuited" probably means his intuition doesn't say the same thing. Poor guy, almost everyone who responded seemed mad at him.

Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Did you even read the part where it says that it was a public performance because they were members of the public? By that definition you could get arrested for public nudity for having sex in your own bedroom.

Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

First shalt thou take out the Holy Wire, then shalt thou measure three feet, no more, no less. Three shall be the length thou shalt measure, and the length of the measuring shall be three. Four feet shalt thou not measure, neither measure thou two, excepting that thou then proceed to three. Five is right out. Once the number three, being the third number, be reached, then connectest thou thy Holy Wire towards thy VCR, who being naughty in My sight, shall snuff it.

Businesses showing movies

"so daycare providers, Offices who have DVD players, and schools are now breaking the law by showing Movies without securing the expressed written consent of the MPAA? I call Bull Shit"

That has been the case for a long time. Those are all genuine examples of a public performance, where showing a movie may require royalty payments to the copyright holder. Such showings in businesses are not included in your rights as a purchaser of a DVD. That is a separate issue from the Zediva case.

Re: Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Re: Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Let us not forget hospitals. The one I've been using for a quarter century allows patients or their guests to bring in movies that they can then play over one of two channels on each floor set aside for the purpose. The movies show on any tv in any room on that floor set to one of those two channels. Oops.

Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

What do you describe is a "public DVD player"?

If I use my DVD player to play someone else's movies, is my DVD player suddenly a "public DVD player"?

Likewise here, if they use their private DVD players to play movies that they are renting to other people, does that make it public? Does that mean anyone can just walk into their datacenter and use their players? It seems to me that the players are private, and they're just granting permission for some people to use them.

According to this ruling, no player that anyone owns is a 'private player'. They're all public players that are subject to infringement. Including players that aren't exclusively players.

Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

Re: Boiled down: a "public performance" is any on a PUBLIC DVD player.

But a DVD that you rent specificly for you at a nominated point in time for the exclusive and only use that you have rented that DVD, & by extension the player ,to watch a specific movie is therefore NOT public.

You have exclusive possesion of both the DVD player and DVD Movie at the time of rental therefore creating a contract of property meaning it is YOUR property at that time meaning it is not, and can never be, public unless the leesee makes it public. Even if the leesee makes it a public performance it is not vicariously the responsibility of the leesor as long as they take reasonable steps to make it plain that public performances by the leesee are not allowed.

Once the leesee watches, or stops the lease/rental then vacant possesion of the property occurs and then it goes back to being a public DVD player. Actually even then it doesn't since it is not used unless under a rental contract.

As you all are members of "the public" and we now have precedent indicating performances to "the public" are considered public performances, we will now begin charging all members of "the public" (aka 'you all') a license fee for the oral performance of copyrighted works during mundane hygiene tasks (aka 'singing in the shower', you know you all do it).

We don't need to actually show that you do, we can just assume that you make these public performances. It is up to you to provide evidence (ie proper recordings of every time you have showered) in order to avoid these fees.

Re: Re:

Re: Re:

unfortunately for you and your pirate 'wife' I hold a patent 'for a method of using manual powered oral suction and lubrication to extract, from a male appendage, a bodily fluid' you can pay me 3000 USD to make this go away or I'll see you in court

Basically, the Cablevision decision is being narrowly construed to mean that the fair use/VHS analogy only applies when it's one copy of a program to one user. No two users ever touched the same DVR recording of a TV program in Cablevision. Here, the same DVD was used multiple times for multiple users. That no two users could utilize one DVD simultaneously is not enough to get around how copyright jurisprudence has defined a public performance in this context. It's unfortunately one of those things that kind of makes sense in pure legalese once you've studied it enough, but still runs afoul of much common sense when you step back. But then again, copyright law isn't about common sense nowadays; it's about preserving markets, and they couldn't let Zediva's contortionist argument break the lines they've drawn between distribution rights [first sale doctrine] and performance rights.

Re:

Re: Re:

No. Resale of a physical copy of a copyrighted work is allowed under 17 USC 109, otherwise known as the first sale doctrine. Once a copy is sold with authorization of the copyright owner, the purchaser may legally resell or lease the copy. That has to do with the right of distribution under copyright law. Here, we're talking about public performances, which are a different right altogether. That's why Netflix can rent all the DVDs it wants to by mail order [physical distribution], but needs licenses to stream the same programs online [public performance]. There's no first sale doctrine for performances, only for distributions.

Re: Re: Re: Re:

Unfortunately, that wouldn't have made a difference. Whether you bought or rented the DVD from Zediva, that would only give you the right to retain and utilize a single physical copy of the media. You'd need the DVD in your hands. As soon as the DVD is converted to a digital signal and then streamed to you, however, it's being reproduced and performed by Zediva. Their only hope was to equate themselves to the Cablevision defendant, who was streaming DVR'd copies of programs and got a fair use defense, but the Cablevision decision hinged on each customer streaming a unique copy of the programs from a personal remote DVR. Here, Zediva was utilizing single copies of the works [DVDs] between multiple subsequent customers. That killed the analogousness.

Re: Re: Re: Re: Re: Re: Re:

You probably could upload your own copy and have them stream it back to you; that's the essence of the "one user, one copy" distinction that Cablevision created, and in turn what cloud services like Amazon and Google's are relying on. As for your second example, your legal possession of the disc does not necessarily create a right for them to create a digital copy to stream to you. You'd probably have to create the copy yourself and stream it yourself, ala Cablevision.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Haha, you probably wouldn't have anything to worry about even if SStB wasn't freed of copyright; "user" in that construction more accurately means point of receipt, and you're not publicly performing the work yourself unless you're watching it in a place open to the public or the 25 people consists of those outside the typical friends-and-family circle [i.e. strangers plucked off the street].

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Considering it's an open gathering of people of like religious beliefs, not necessarily people that we have met in person yet... Yeah, I think it would. That's okay, though. We stream our Netflix at the same gatherings.

Re: Re: Re: Re: Re: Re:

That gets into a whole 'nother nuanced area of copyright law [reproductions, retention of back-up copies when you divest the main copy, etc.], which I doubt Zediva would come out on top from, but I actually want to back up, because I think gave an incomplete explanation of what happened in Cablevision. IIRC [I haven't read the case in a while], there was three portions of the remote DVR system that were at issue: the buffer copies of programs during the recording process, the actual copies that then resided on the remote DVR, and the transmission to the Cablevision customer from the DVR. The buffer copies were considered too transient to be "fixed" under copyright law [meaning no violation of the reproduction by Cablevision occurred], the actual copies residing on the DVRs were fair use in the spirit of the Sony Betamax case [so again, no violation of the reproduction right], and because each customer created their own unique recordings only viewable by themselves, the streams were not considered public [so no violation of the public performance right]. Altogether, a very, very fact-specific set-up that Zediva will have a hard time analogizing itself to from a technical standpoint.

Re: Re: Re: Re: Re:

Here, Zediva was utilizing single copies of the works [DVDs] between multiple subsequent customers.

Like Netfiix. If Netflix used a separate DVD for each customer, it would be in the clear. But it doesn't. It reuses the same DVD over and over, denying the copyright holder additional income, and that's what makes it's rental business an illegal public performance. It's only a matter of time before the law catches up to them.
/s

Re: Re: Re: Re: Re: Re:

Haha. Trust me, media companies are no fans of the first sale doctrine. Look up Vernor v. AutoDesk to see how they are trying to route around it nowadays with licensing restrictions. I wouldn't be surprised if the next big challenge to the FSD tries to expand Vernor's licensing mechanism into media other than software.

Re: Re: Re:

Wow, thanks for the reply, I didn't expect to get one.

But couldn't you make the argument that distribution of a DVD to another party constitutes a public performance? Is a physical medium all that is required to constitute the difference between renting and a public performance?

Re: Re: Re: Re:

No problem -- always glad to engage on this topic.

Copyright law is set up to distinguish between the physical distribution of a copy of an audiovisual work and the actual conversion of that work into a perceptible form. Under the law, a copyright owner generally has the exclusive right to exercise any of the five general rights of copyright [reproduction, adaptation, distribution, public performance, and public display]. Distribution involves disseminating copies of the work to the public without actually playing them. Generally, only a copyright owner would be allowed to do this, but under a particular exception [the first sale doctrine], distribution is allowed by people other than the copyright owners so long as they've legally purchased each copy of the work they're disseminating [like Netflix with its rental by mail]. Assisting the perceptible rendering of those copies to the customers beyond furnishing the physical copy of the work, however, crosses over from mere distribution to performance, and the first sale doctrine that allowed for the distribution does not also cover the performance. Therefore, the copyright owners are back in control and must authorize the performances. They've done so with Netflix through a licensing deal. Zediva had no such deal, and so their performances were infringing.

Re: Re: Re: Re: Re: Re:

3D glasses don't actually create or alter the performance as it's rendered, only your personal physical perception. As for your second example, I think I actually recall a hypothetical like that in my casebook when I took copyright law, but it was one of those useless hypotheticals that doesn't actually provide an answer. I'm inclined to say no, but thanks to the ridiculous complexities of the law, I'd have to give it some thought first.

Re: Re: Re: Re: Re: Re: Re:

i programed an elderly neighbor's VCR for her, hopefully im ok because she still has to swap out the tapes. But i guess i should go over there erase the record settings and unplug everything and tell her to do it herself, I don't need the MPAA to catch wind of this.

Re: Re: Re: Re: Re:

Assisting the perceptible rendering of those copies to the customers beyond furnishing the physical copy of the work, however, crosses over from mere distribution to performance

I've never heard this before: that the mere act of transcoding violates the "public performance" right. If anything, it might violate the "derivative works" right, but that's kind of a stretch.

Also, they were not doing the same as Netflix' streaming service. The only transcoding that took place was between Zendiva's DVD player and the user, and that was just to compress the signal enough to transmit it over the wire. It was still one user = one copy.

Re: Re: Re: Re: Re: Re:

I'm not aware that all Zediva did was transcode, nor did I say that alone would be a performance. You say yourself that they transmitted the signal to the end user. That transmission, assuming it resulted in a ephemeral viewing of the work in question, sounds like a performance to me. Additionally, the transmissions are merely secondary to the use of the source DVDs, which are not confined to a single viewer's use. In Cablevision, there was no public performance because each source file was unique and its creation covered by fair use [ala the Betamax case]. Here, there is no precedent for a fair use creation of the transcoded, streamable version of the movie [because it was not created from a TV broadcast]. Each DVD is used multiple times to create those streamable versions and sent to multiple sequential users. You can certainly try and make an argument that this form of "one user, one copy" should also be allowed, but it does not fit neatly into the Cablevision facts without some alteration.

Re: Re: Re: Re: Re: Re: Re:

Yeah, this is why this is so problematic I think. IANAL myself, but...

"You say yourself that they transmitted the signal to the end user."

So does my Xbox, PS3, Wii, laptop DVD drive, my DVR... the only difference is that those items happen to be in the same room as the TV (most of the time).

In fact, I'm quite capable of streaming my own DVD from my living room media centre to my laptop upstairs if I wish to watch a movie in bed. I can do this remotely if I'm at work and want to watch a file on my home PC. Strange how this setup suddenly becomes illegal if I don't happen to own both pieces of equipment.

"Additionally, the transmissions are merely secondary to the use of the source DVDs, which are not confined to a single viewer's use. "

DVDs are never confined to a single user's use (e.g. lending to friends, flatmates watching your copy, etc.)

"Each DVD is used multiple times to create those streamable versions and sent to multiple sequential users."

...but only one user can access it at any one time. So, it's a one-to-one broadcast, not a one-to-many.

There's probably quite easy legal explanations for all of these points. But, this is really the sticking point - where the law has to examine minutiae to determine whether something is infringing, even though similar setups are legal, there's something rather wrong IMHO.

Re: Re: Re: Re: Re: Re: Re: Re:

Oh, don't get me wrong, the law is totally messed up in the level of detail and minutia it requires one pay attention to. I'll see if I can quickly walk through it, though. [I have to be up for a law conference in five hours; kinda regretting I signed up at the moment, hah.]

All those things that you own [DVR, XBox, etc.] are streaming to you and you alone; the performances they render are not open to the public, so there's no infringement there [since the copyright owners only control public performances, not private ones]. Problems arise when works are offered to other members of the public for streaming, "whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." By offering the streams of the DVD to the public as they do, Zediva implicates the public performance right, regardless of the fact that only one user can receive it at a time. In fact, the copyright statutes explicitly render that a moot distinction ("same time or different times").

The way you explain a DVD's non-confinement to a single user implicates its physical hand-off from person to person -- otherwise known as distribution, which is allowed under the first sale doctrine [reselling, leasing, loaning, etc.]. The public performance right (implicated in the streaming), however, has no such blanket exception. In light of that fact, Zediva was aiming for the case law exception enunciated in Cablevision, but couldn't fit the necessary fact pattern [which requires unique recordings streamed to each member of the public, ones created through fair use]. Here, the reproductions of the works aren't fair use under the Betamax case because they weren't TV broadcasts, and the copies aren't unique because each DVD is used multiple times [again, the fact that only one person uses it at a time is irrelevant given the language of the statute]. Thus, in the eyes of the court, they do not fit Cablevision, do not benefit from its exemption, and thus continue to infringe the public performance right absent licenses from the copyright holders on the DVDs.

All of this insanity stems from the fact that copyright is focused on five rights of owners' that have increasingly bled together in the digital age, and courts must carve increasingly nuanced lines out in order to maintain the viability of those rights. And as outfits like Zediva seek to strain those boundaries further, the courts will be hard-pressed to keep copyright from unraveling even further.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Hey, no problem and thanks for the insight. Always nice to have some differing opinions on here from non-trolls.

I would still say that this is the sticking point that confuses about this issue:

"All those things that you own [DVR, XBox, etc.] are streaming to you and you alone"

That's the thing, they don't. I can stream to multiple people in the same house, or even neighbours. I can stream to work, and thus to all my colleagues if I wished. The only real differences between this and what Zediva was doing is my personal relationship to those people, and the fact that I didn't charge for the rental.

Maybe it's that commercial vs. non-commercial thing that's the real problem, but then you're really just paying someone to do something for you that you could do yourself legally? Maybe my actions are infringing but not worth going after to begin with - in which case those rules are pointless.

"The way you explain a DVD's non-confinement to a single user implicates its physical hand-off from person to person"

...but if Zediva only allows one access at a time to the DVD and its player, it's also doing a physical hand-off. Just not in the same location as the person it's handing off to. It's only the matter of physical location that makes this any different to, say, Netflix's physical distribution.

"And as outfits like Zediva seek to strain those boundaries further, the courts will be hard-pressed to keep copyright from unraveling even further."

Hopefully you're correct. The law as it stands is a mess, and doesn't take into account the realities of what's really happening. We need change, and soon. I fear there will be a lot more blood shed in the battle for the law to join the reality of the 21st century, and that's a shame.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Glad to have such a discussion. Honestly, I agree with the prevailing Techdirt community sentiment in the overwhelming majority of news items, so it's a little disheartening to see some users personally attacking me not for trollish behavior or invective [which I've tried very hard to avoid], but simply for trying to explain the existing law to those confused by the court's arguable logical lapses.

While you can stream to others in your house, work, neighbors, etc., it takes more than to make those transmissions "public performances." You need to transmit to public places or to members of the public [including any substantial gathering of people outside one's normal circle of friends and family], which Zediva did in its commercial offering that accepts any paying customer [i.e. member of the public.] So yeah, the relationships actually do matter [as well as the locations].

Don't confuse limited access to the work with a hand-off; "distributions" and "public performances" under copyright law have specific meanings and requirements. A distribution is conveying an actual copy of the work to someone [whether physically or electronically] so that they possess the copy. A performance allows someone to experience the work without actually possessing the copy. If Zediva allows the person to download the work, it would be a distribution. A stream, however, is a performance, because no fixed copy of the work ends up in the viewer's possession. When the performance ends, the work is gone [unless the viewer has recorded it, but that's on him, not the performance provider]. The location distinction is arguably incidental.

I'm not denying that, in practice, Zediva's offering is equivalent to renting you a DVD and skipping the hassle of shipment. Unfortunately, working around that hassle changes their offering from a distribution [which doesn't require a license if Zediva legally purchased each DVD it sends out] to a public performance [which requires a license]. That's just how the law is set up. It's arguably a stupid outcome from a technical perspective, but as long as statutory law dictates it [which it does, since the specific rights of copyright and the limitations of the first sale doctrine are enumerated in the United States Code], the courts are not in a great position to do much about it. They're bound by Congress.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

If you explain it that way it makes rentals of DVDs illegal. Netflix et.al. does not destroy the DVD copy when it is returned, it is re-distributed to the next customer. It matters not how many times it is used but only who has access to the content at a particular time. If I rent a DVD from Blockbuster, and I then rent a DVD player from Rent-A-Center, is Rent-A-Center infringing? If I play a rented DVD in my rented DVD player then output the signal to my rented video input card on my rented computer then stream it through my rented Internet connection to my rented cellular connection to view it on my rented laptop, using rented software which limits me to only start and pause said DVD, is that infringement?

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re:

I'm not aware that all Zediva did was transcode, nor did I say that alone would be a performance. You say yourself that they transmitted the signal to the end user. That transmission, assuming it resulted in a ephemeral viewing of the work in question, sounds like a performance to me. Additionally, the transmissions are merely secondary to the use of the source DVDs, which are not confined to a single viewer's use.

The Cablevision ruling goes into great detail about what constitutes the "public:"

even if we assume that Cablevision makes the transmission when an RS-DVR playback occurs, we find that the RS-DVR playback, as described here, does not involve the transmission of a performance "to the public."

The statute itself does not expressly define the term "performance" or the phrase "to the public." It does explain that a transmission may be "to the public ... whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times." Id. This plain language instructs us that, in determining whether a transmission is "to the public," it is of no moment that the potential recipients of the transmission are in different places, or that they may receive the transmission at different times. The implication from this same language, however, is that it is relevant, in determining whether a transmission is made to the public, to discern who is "capable of receiving" the performance being transmitted. [...]

Cablevision argues that, because each RS-DVR transmission is made using a single unique copy of a work, made by an individual subscriber, one that can be decoded exclusively by that subscriber's cable box, only one subscriber is capable of receiving any given RS-DVR transmission. This argument accords with the language of the transmit clause, which, as described above, directs us to consider the potential audience of a given transmission. We are unpersuaded by the district court's reasoning and the plaintiffs' arguments that we should consider a larger potential audience in determining whether a transmission is "to the public."

Given that each RS-DVR transmission is made to a given subscriber using a copy made by that subscriber, we conclude that such a transmission is not "to the public," without analyzing the contours of that phrase in great detail. No authority cited by the parties or the district court persuades us to the contrary.

In Cablevision, there was no public performance because each source file was unique and its creation covered by fair use [ala the Betamax case].

Whether such copies were "fair use" was not a consideration as to the "public performance" aspect (discussed in Part III of the ruling). That was used solely in determining whether Cablevision would be directly liable for infringement (discussed in Part II).

However, the fact that each file was a distinct copy probably did push the determination in favor of non-infringement. The Cablevision case discusses Columbia v. Redd Horne:

In that case, defendant operated a video rental store, Maxwell’s, which also housed a number of small private booths containing seats and a television. Patrons would select a film, enter the booth, and close the door. An employee would then load a copy of the requested movie into a bank of VCRs at the front of the store and push play, thereby transmitting the content of the tape to the television in the viewing booth.

The Third Circuit found that defendants' conduct constituted a public performance under both clauses of the statutory definition. In concluding that Maxwell's violated the transmit clause, that court explicitly relied on the fact that defendants showed the same copy of a work seriatim to its clientele, and it quoted a treatise emphasizing the same fact:

Professor Nimmer's examination of this definition is particularly pertinent: "if the same copy ... of a given work is repeatedly played (i.e., 'performed') by different members of the public, albeit at different times, this constitutes a 'public' performance." Although Maxwell's has only one copy of each film, it shows each copy repeatedly to different members of the public. This constitutes a public performance.

Unfortunately, neither the Redd Horne court nor Prof. Nimmer explicitly explains why the use of a distinct copy affects the transmit clause inquiry. But our independent analysis confirms the soundness of their intuition: the use of a unique copy may limit the potential audience of a transmission and is therefore relevant to whether that transmission is made "to the public."

However, let's look at the Redd Horne case in more detail:

The remaining question is whether these performances are public. [...]

[W]e agree with the district court's conclusion that Maxwell's was open to the public. On the composition of the audience, the district court noted that "the showcasing operation is not distinguishable in any significant manner from the exhibition of films at a conventional movie theater." Any member of the public can view a motion picture by paying the appropriate fee. The services provided by Maxwell's are essentially the same as a movie theatre, with the additional feature of privacy. The relevant "place" within the meaning of section 101 is each of Maxwell's two stores, not each individual booth within each store. Simply because the cassettes can be viewed in private does not mitigate the essential fact that Maxwell's is unquestionably open to the public.

By those criteria, the Redd Horne case would not apply in this case. Unlike Maxwell's, Zediva is nothing like "a conventional movie theater." Zediva does not have a "store," or any location, where it "showcases" movies. So, within the meaning of section 101, the relevant "place" should be private in-home use, which is not considered public.

Combine the inapplicability of Redd Horne, with Cablevision's "only one subscriber is capable of receiving" clause, and it should have been decided in Zediva's favor.

Re: Re: Re: Re: Re: Re: Re: Re:

Hi Karl,

Without commenting on the merits of your argument, I will note that you are only considering one of the two definitions of "publicly" under 17 USC 101. The definition is divided into two clauses: a public place clause and a transmit clause. The clause is disjunctive, meaning that either clause can constitute a "public" performance. Your argument goes only to the first clause, not the second (the court in Redd Horne found it unnecessary to consider the second clause after finding the defendants liable under the first). The "public" analysis for each is different.

The court explains the distinction well in On Command Video and even cites Redd Horne:

In On Command's system, this viewing and hearing occurs only in an individual guest room. That can be the only relevant place of performance for public place analysis. Since hotel guest rooms are indisputably not public places for copyright purposes, On Command's system results in no public performances under the public place clause

...

On Command's video transmissions are also "to the public" for the purposes of the transmit clause. Hotel guests watching a video movie in their room through On Command's system are not watching it in a "public place" but they are nonetheless members of "the public." See Columbia Pictures Industries, Inc. v. Redd Horne, 568 F.Supp. 494 (W.D.Pa.1983), aff'd 749 F.2d 154, 159 (3rd Cir.1984) ("the transmission of a performance to members of the public, even in private settings such as hotel rooms ... constitutes a public performance") (citing H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 64 (1976) ["1976 House Report"]); ESPN, Inc. v. Edinburg Community Hotel, Inc., 735 F.Supp. 1334, 1340 (S.D.Tex.1986) ("The [1976] House Report ... on the Copyright Act makes explicit that performances to occupants of hotel rooms fall within the definition of a public performance"). This is because the relationship between the transmitter of the performance, On Command, and the audience, hotel guests, is a commercial, "public" one regardless of where the viewing takes place. The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute "the public" under the transmit clause.

This is nearly identical to what the judge wrote in the Zediva case:

Defendants' transmissions are "to the public" because the relationship between Defendants, as the transmitter of the performance, and the audience, which in this case consists of their customers, is a commercial, "public" relationship regardless of where the viewing takes place. The non-public nature of the performance has no bearing on whether or not those who enjoy the performance constitute "the public" under the transmit clause.

Re: Re: Re: Re:

Indeed, they leased the copy, and were free to provide said copy [the physical DVD] to the end-user. What they did, however, is stream the DVD from its remote location to the end user, which prior case law has stated constitutes a performance. Everyone in this thread is right when they say that technologically, there is a great deal of equivalence between watching a movie through Zediva and watching it through your own entertainment console. But the courts want to preserve the distinction between a performance and a distribution; if a business wants to take advantage of the first sale doctrine, courts don't want them to then piggyback Cablevision on it to nullify a copyright owner's ability to control the public performance of a work as well -- at least, not unless the scenario fits Cablevision to a T. This court held it did not, and I don't foresee them changing their minds [especially in light of the aforementioned policy concerns]. I'm not saying this is "right," per se -- this whole area of the law is messy and has taken very tenuous evolutionary steps over the years. Cablevision is just the most recent manifestation of that, and we'll be trying to make all the other pieces of the puzzle fit with it for quite a while.

Re: Re:

Yep. The construction of copyright law doesn't always hinge on the physical particularities of the conveyance. IIRC, the Redd Horne case mentioned by the court here had to do with a Blockbuster type store that allowed customers not only to rent movies, but also rent rooms within the store to then watch the movies in. The court held those were public performances, even though the viewing rooms were private and the customers weren't doing anything they couldn't do in their own homes. The fact that the rooms were open to the general public and on the premises of the store meant the store was, in the eyes of the law, performing the works to the public. From a common sense viewpoint, arguably quite stupid. But that's how the law has been constructed to prevent the individual rights of copyright law from bleeding together too much.

Re: Re: Re:

But that's not the same. The DVD players were not open to the public, they were only open to their customers. Are the players considered public if more than one person uses it? Are the DVDs considered public if more than one person uses it?

Re: Re: Re: Re:

To the courts, if you welcome any member of the public as a customer, you're open to the public, and you probably need licenses to then perform the works for them. Netflix's streaming service is only legal because they have licenses with the content owners to perform those works. Their rental service is legal because of the first sale doctrine. Zediva can rent all the DVDs by mail that they want, same as Netflix, because that business model falls under an exception to copyright law [the aforementioned first sale doctrine]. What they tried to do here is combine the first sale doctrine [giving them use of the physical DVDs] and the Cablevision decision [which provided a fair use exception for remote streaming] to essentially yield a first sale doctrine for public performances. The court here is nipping that in the bud by limiting the Cablevision decision to its facts, as I mentioned in my initial post.

Re: Re: Re: Re: Re:

Thank you again for the reply,

When you say "limiting the Cablevision decision to its facts". For a short time, it could have been interpreted the same way Zediva interpreted it, the only thing that changed from then and now is how this particular court interpreted it.

Re: Re: Re: Re: Re: Re:

You're quite welcome.

IIRC, the Cablevision court intoned that its decision in the case already was a narrow one, a very factually-specific one. Basically, because each Cablevision customer was streaming a unique copy of whatever they asked the remote DVR to record, the works weren't being offered to the general public; only the specific customer who authorized the individual recording. This created the notion that streaming unique and dedicated copies of works to each customer didn't constitute a public performance, and it's why the cloud music services we see cropping up [like with Amazon and Google] require each customer to upload his music rather than let all customers stream from a central database of files. It's technologically inefficient and redundant, requiring excessive remote storage, but it keeps the services within the confines of what Cablevision seemed to allow. But with Zediva, a single batch of DVDs was offered to the general public to stream, and presumably each DVD is used multiple times for subsequent customers. That places it outside what Cablevision deemed not to be public performance. Zediva's challenge is to convince the court that Cablevision should be expanded based largely on what Mike has argued -- that the differences between the two services are purely a physical nuance, and that it's ridiculous for copyright law to make such a distinction. My guess is the courts will disagree, because they're not looking for things to make physical sense; they just want to preserve the market distinction between a distribution and a performance.

Re: Re: Re: Re: Re:

Zediva can rent all the DVDs by mail that they want, same as Netflix, because that business model falls under an exception to copyright law [the aforementioned first sale doctrine].

I wouldn't call that an exception to copyright law, but a limitation, a boundary. Nitpicking maybe, but first sale isn't like fair use, where you're allowed to make an otherwise infringing copy for particular uses. When exercizing the right of first sale, you're not making any copies at all. It just states that the copyright holder doesn't have any say in how you dispose of the copy you already have.

Re: Re: Re: Re: Re: Re:

Re: Re: Re:

IIRC, the Redd Horne case mentioned by the court here had to do with a Blockbuster type store that allowed customers not only to rent movies, but also rent rooms within the store to then watch the movies in. The court held those were public performances, even though the viewing rooms were private and the customers weren't doing anything they couldn't do in their own homes. The fact that the rooms were open to the general public and on the premises of the store meant the store was, in the eyes of the law, performing the works to the public.

I see, so if you have sex in a rented hotel room, then you are having sex in a public place.

Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re:

Pretty sure individual positions are not protectable by copyright, but a sufficiently creative sequence of positions might be under the "selection and arrangement" test. I think that's how certain famous yoga instructors have gained copyright for their workout routines, actually. [Choreography is one of the categories of works protectable under the Copyright Act, and I would love to see a porn company try and take a claim like that to court.]

Re:

Re: Re:

The legal difference is that Netflix DVDs involve the distribution of physical copies of the media, which is allowed under the first sale doctrine of copyright law. The streaming of the same programs, however, involves the public performance right, to which there is no first sale doctrine exemption.

Re: Re: Re:

The legal difference is that Netflix DVDs involve the distribution of physical copies of the media,

I don't know why you think it didn't, but that happened in this case as well. Physical copies were distributed to the DVD players.

The streaming of the same programs, however, involves the public performance right, to which there is no first sale doctrine exemption.

Previously, a streaming public performance would have been thought by most to involve the streaming of a performance to the public. This judge has now ruled that private streaming to an individual is also a public performance.

Re: Re: Re: Re:

I don't know why you think it didn't, but that happened in this case as well. Physical copies were distributed to the DVD players.

That's not the legal definition of a distribution under copyright.

Previously, a streaming public performance would have been thought by most to involve the streaming of a performance to the public. This judge has now ruled that private streaming to an individual is also a public performance.

If you read the prior jurisprudence on public performance [many of the cases are cited in this court's order], you'll see that private streaming can be a public performance if such a stream is generally offered to members of the public, whether they are viewing it at the same time or different times, and in the same place or different places. The Zediva court isn't making any large doctrinal shifts, merely adhering to how previous cases have construed public performances.

Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re:

Except not. Distribution involves making works available to members of the public. DVD players are not members of the public, so they cannot be recipients of a distribution. You seem to be using the term in a colloquial sense rather than in the specific context of copyright. Also, I'm not sure why you feel the need to personally attack my knowledge [or perceived lack thereof] when all I want is to have an interesting, constructive discussion on the issues.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I'm saying that a distribution requires conveyance of a work in fixed form. If Zediva let you download a work to your hard drive [like a file-sharing program], it would be a distribution (followed by a performance when you played the file). But because Zediva merely streams the movie in real time, and does not replicate the file on your computer in any sufficiently fixed form (merely a partial buffer copy), it is a performance alone. And no worries -- I'm no industry shill, merely a law student who has spent enough time reading about copyright law that I feel I can hopefully help shed some light on the courts' reasoning.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I'm saying that a distribution requires conveyance of a work in fixed form.

Really? So, electronic distribution doesn't count? There sure are a lot of file sharers out there that are off the hook then.

If Zediva let you download a work to your hard drive [like a file-sharing program], it would be a distribution...

Okay, that contradicts what you said just before that. If you're going to keep contradicting yourself like that then you're going to loose all credibility.

Oh, and by the way, the streams *can* be captured to a "hard drive". (As if the type of storage device really makes a fundamental difference. What, are some storage device legal and others illegal? Where's that list?)

(followed by a performance when you played the file)

Ahh, so then the customers are guilty of public performance after all. I suppose the MPAA might be suing them next?

But because Zediva merely streams the movie in real time,

Oh, so now you're saying that it's the speed of the transfer that makes the difference. I don't recall the judge saying that, but maybe I missed it. I'm sure you wouldn't be making that up.

and does not replicate the file on your computer in any sufficiently fixed form (merely a partial buffer copy), it is a performance alone.

I don't think Zediva does *anything* on your computer, do they? That's up to the customer. And you seem to think there's more theoretical distinction to a buffer than there really is. I've got plenty of buffer on my computer to hold complete movies.

And no worries -- I'm no industry shill, merely a law student who has spent enough time reading about copyright law that I feel I can hopefully help shed some light on the courts' reasoning.

I didn't really think you were. The problem is that you're trying to make technical distinctions that strictly don't exist. You seem to have a lack of appreciation of what you don't know about the subject and are more than willing to begin making stuff up. And that's the problem. (I suggest you go spend a few years of *rigorous* study of information theory and engineering if you want to begin to really understand it.) A judge may rule that 1+1=3, and it may then be "legally" so, but that doesn't really make it so. The law does not define the truth. That's something that those in the legal profession sometimes lose sight of.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I'm just going to quickly knock all your points down.

[1] Never said electronic distribution doesn't count. When the file hits your hard drive and can be reproduced from it, it's considered fixed. [2] You fail to explain how I allegedly contradicted myself. [3] The fact that a stream can be captured doesn't change the fact that the action of streaming is a performance rather than a distribution. [4] As for the customers, I said performance; not public performance. You added the public part. It's a private performance if they play it for themselves, which is not infringing. [5] If you read the Cablevision decision, you will see the judge make the distinction that a buffer copy of a program in a device such as a DVR is fixed for an insufficient amount of time (about 1.8 seconds in that case, IIRC) to constitute a copy of the work as defined by copyright law. You're welcome to pretend there's no distinction between a buffer copy and an actual copy, but the courts have contradicted you.

Whatever you think you know about the "reality" of technology is irrelevant to these discussions about what the law actually says. You may have compelling policy reasons to disagree with the courts and legislature, and I may even sympathize with them, but none of that invalidates my factual summary and analysis as to what those courts and that legislature have dictated up until now. I never argued that these distinctions are "right" from either an ethical or technological perspective. Merely a legal one. Yet you continue to attack me with unsubstantiated accusations and innuendos. Until you can actually proffer some contrary evidence to invalidate my claims, you will only perpetuate your own impotence in this discussion.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Lets see, "I'm saying that a distribution requires conveyance of a work in fixed form." Was that not you or is there another DandonTRJ posting here?

[2] You fail to explain how I allegedly contradicted myself.

First you claim that "distribution requires conveyance of a work in fixed form", and then you claim that electronic downloads (which are not conveyed in a fixed form) are distribution. If you can't see the contradiction there then you're beyond my ability to explain it to you.

[3] The fact that a stream can be captured doesn't change the fact that the action of streaming is a performance rather than a distribution.

It highlights your lack of understanding of the situation. You seem to think that there's some magical difference that exists that doesn't. The same stream can either be captured to a storage device or not. THE SAME STREAM. Whether or not it is is up to the customer. Or are you arguing that Zediva is responsible for the actions of the customers? From what you've stated, it then follows that is was the customers failure to capture the streams that made them public performances. How is that Zediva's fault?

[4]As for the customers, I said performance; not public performance. You added the public part.

Excuse me, I thought we we talking about Zediva being accused of public performances. I didn't realize that I added the "public" angle. What story did you believe you were commenting on if not this one?

It's a private performance if they play it for themselves, which is not infringing.

I think you need to go read what the judge said again.

[5] If you read the Cablevision decision, you will see the judge make the distinction that a buffer copy of a program in a device such as a DVR is fixed for an insufficient amount of time (about 1.8 seconds in that case, IIRC) to constitute a copy of the work as defined by copyright law.

Ahh, so 1.8 seconds would not infringe, but 2 seconds might? See, that's a problem. There was noting in the written law about 1.8 seconds before that. What we have here is judges making up law after the fact.

You're welcome to pretend there's no distinction between a buffer copy and an actual copy, but the courts have contradicted you.

Scientifically, I can see no reason that 1.8 seconds isn't an arbitrary and irrelevant number with no distinguishing feature other than being picked out of the air by a judge. You're free to pretend that there *is* a real distinction, but science contradicts you.

Whatever you think you know about the "reality" of technology is irrelevant to these discussions about what the law actually says.

That's kind of the point, that the law is out of touch with reality.

You may have compelling policy reasons to disagree with the courts and legislature, and I may even sympathize with them, but none of that invalidates my factual summary and analysis as to what those courts and that legislature have dictated up until now.

I'm just looking at the situation from a scientific perspective. The physical world doesn't care if you sympathize or agree with it or not. And it doesn't care what is morally right or wrong. It is the same regardless. Of course, like courts once ruled against Galileo and decreed that the Sun circled the Earth, science and the legal profession often disagree.

I never argued that these distinctions are "right" from either an ethical or technological perspective. Merely a legal one.

I'm just pointing out the logical inconsistencies of the law as you presented it and the technological mistakes you used to support it. It has nothing to do the ethics of the law, only the truth.

Until you can actually proffer some contrary evidence to invalidate my claims, you will only perpetuate your own impotence in this discussion.

I think I pretty much did on the technological points. On the legal points, I just pointed out logical absurdities. Sorry if that bothers you.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

[1/2] Electronic downloads are considered fixed under copyright law. Electronic streams are not. I really don't know how to make that any simpler for you. If the file sits on your hard drive rather than disappearing after a small period of time in a buffer, it's a fixed copy. [3] There -is- a legal difference between streaming and distributing. Your insistence otherwise carries no weight. If Zediva streams the video, it's a public performance. If they merely send the file without any simultaneous playback, it's a distribution. If they send a transmission that both downloads and simultaneously plays, it's both. If the user records a non-downloadable stream of his own accord, Zediva is not responsible for a distribution because that was not the nature of their transmission. [4] I was trying to explain what actions constitute performances, including when performances are actionable. For example, the viewing by the user can be private even when the stream by Zediva is considered public [which is what you seemed confused about]. Copyright law is complicated. It would reflect better on you if you didn't automatically accuse me of lying just because a point is nuanced. [5] A case decided after Cablevision seemed to indicate [arguably in dicta] that it would take a few minutes of sitting on a computer for a file to be considered fixed. 1.8 seconds happened to be the amount of time the DVR at issue in the case held the video in its buffer. I never framed 1.8 as a hard-and-fast rule. You should probably stop assuming so much.

I really want to reiterate that I have no quarrel with your arguments as to why the courts, in deciding the laws as they have, have been silly, arbitrary, capricious, or just stupid. All I have done in this thread is provide THE COURTS' reasoning, not my own. You seem to be operating under the false belief that I'm advocating for a certain understanding of technology in the law. I'm not. I just want to make sure that people know what precedent and law this decision was actually based on. I would appreciate if you could understand that and not bite my head off for doing so.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

[1/2] Electronic downloads are considered fixed under copyright law. Electronic streams are not. I really don't know how to make that any simpler for you.

Technically, the difference is in what the customer is doing after receiving them, i.e. whether or not they are keeping them. To make Zediva responsible for that is to make them responsible for the actions of the customer. There may be a legal fiction that says the bits are different, but that doesn't make it so. I really don't know how to make that any simpler for *you*.

[3] There -is- a legal difference between streaming and distributing. Your insistence otherwise carries no weight.

I didn't claim there was no *legal* difference and your claim that I did is itself a false claim. You seem to be having a hard time accepting that your precious legalities may differ from the physical realities of the real world.

If the user records a non-downloadable stream of his own accord, Zediva is not responsible for a distribution because that was not the nature of their transmission.

You're just full of contradictions, legal fictions and technical ignorance. If a stream is truly "non-downloadable", then the "user" would not be able to "record" it, now would they? However, you first you posit a stream that can't possibly be downloaded, then you talk about someone doing it. Wow. And the really funny part is, it seems that you can't even see the logical contradiction there. But then, I suppose anything is possible in the imaginary world of "the law".

Then, you go on to further contradict yourself. You previously stated that if the the stream is downloaded, then Zediva is distributing. Now you say that in such a case "Zediva is not responsible for a distribution". You even go so far as to invoke the name of "nature" in order to support that position while continuing to ignore the very laws of nature. Laws of man trump laws of nature, eh?

[4] I was trying to explain what actions constitute performances, including when performances are actionable. For example, the viewing by the user can be private even when the stream by Zediva is considered public [which is what you seemed confused about].

Legally, I agree anything is possible. It all just depends on what someone with legal "authority" wants to make up. I'm not arguing that. I'm just continuing to point out that legal fictions do not reality make.

Copyright law is complicated.

Copyright law is contorted.

It would reflect better on you if you didn't automatically accuse me of lying just because a point is nuanced.

I never used that word. But you repeated false technical (not legal) claims, despite having the falsity of such claims pointed out to you. I'll let that speak for itself.

[5] A case decided after Cablevision seemed to indicate [arguably in dicta] that it would take a few minutes of sitting on a computer for a file to be considered fixed. 1.8 seconds happened to be the amount of time the DVR at issue in the case held the video in its buffer. I never framed 1.8 as a hard-and-fast rule. You should probably stop assuming so much.

Backpedal much? Why am I not surprised. I suspect that if pressed, you could tell me what the exact limit is, could you? That's the kind of thinking that wants to define a "limited time" in copyright law as "forever minus a day".

I really want to reiterate that I have no quarrel with your arguments as to why the courts, in deciding the laws as they have, have been silly, arbitrary, capricious, or just stupid.

But then you go on a quarrel with them. Contradiction much?

All I have done in this thread is provide THE COURTS' reasoning, not my own.

No, you made technical statements that the court didn't make. I think that makes them yours.

You seem to be operating under the false belief that I'm advocating for a certain understanding of technology in the law. I'm not.

I'm just going by what you wrote.

I just want to make sure that people know what precedent and law this decision was actually based on.

Thank you, and I appreciate that. I truly do.

I would appreciate if you could understand that and not bite my head off for doing so.

Where you went of the rails is when you deviated from just *presenting* the legal arguments and began to try to twist physical reality (either intentionally or not) to make it fit the law. Stick to arguing stuff that you actually know about and you'll be much more credible. If you want to argue the technical stuff, go learn it first. There are lawyers that have degrees in specialized fields such as medicine and engineering in addition to their law degrees. There's a reason for that.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I'm done responding to this thread after this comment, because you've made this dialogue incredibly unpleasant with your snark, misreading of my statements/intents, and hostile assessments of my personal intellectual character. I have not offered any "original" interpretations of the technology at issue in this case. I have been offering technological interpretations that THE COURTS have been using. Maybe they're completely incorrect according to a technologist such as yourself, and I welcome you to somehow correct the judges. Until you can do that, as a law student, I'm forced to labor under the interpretations that the courts have adopted.

Dispending with my alleged contradictions: This is not about "truly" downloadable or not, it's about what the nature of the service is. YouTube offers broadcasts of works [public performance], even though it's technically possible to download them [distribution]. If Zediva does not offer a way to download its movies, it is arguably not guilty of distribution, even if someone figures out a way to turn the stream into a fixed copy of the work on their hard drive. This is not my novel interpretation of technology, only my report on how copyright cases has often treated such technology up until now. Maybe those interpretations are "false," as you say. But since that's how the courts have ruled, I and the rest of this nation are saddled with them until the courts change course.

And finally, I did not backpedal on the duration a work must be contained in a buffer to be considered a fixed copy. I gave you more information on what courts have speculated that threshold would be after telling you about a duration one court considered too fleeting. You keep trying to persistently impugn my intellectual integrity when all I've done is try to explain the case law in this area, not advocate for its correctness. You keep thinking I've gone beyond the law and started folding in my own technical explanations. I haven't. It's all been the courts.

Re: Re: Re: Re: Re:

If you read the prior jurisprudence on public performance [many of the cases are cited in this court's order], you'll see that private streaming can be a public performance if such a stream is generally offered to members of the public, whether they are viewing it at the same time or different times, and in the same place or different places.

Zediva makes a copy of a movie stored on a DVD using a DVD player and streams it to one customer. I know it has to be a copy because the DVD stays with Zediva. Later they make another copy and stream it to another customer. I know it's a new copy because the DVD player doesn't store anything.

Cablevision makes a copy of a movie stored on a hard drive using a computer and streams it to a customer. Later they make another copy of the same movie and stream it to another customer.

Re: Re: Re: Re: Re: Re:

Cablevision allowed users to make real-time copies of publicly offered TV broadcasts they already had the ability to view [a time-shifting activity in line with SCOTUS-validated fair use], each copy unique to the broadcast signal the customer was allowed to receive. Zediva did not create copies of broadcasts, but private property DVDs that were used repeatedly. The split between camps in this argument is whether or not Zediva's creation of streaming copies from the DVDs is equivalent to Cablevision's streaming copies from the broadcasts, and there's an argument to be made that it is, but that argument does require an expansion of Cablevision rather than a mere adherence to its facts.

Re: Re: Re:

The thing is, both the DVD and DVD player are rented out to the end-user, who is given full control of the machine. It's the end-user who initiates the playback.

If there's a streaming right involved, it's violated by the end-user renting the equipment and playing back the DVD, not by the company that rented out the equipment.

However, it's perfectly legal to make backups of your DVDs onto a media server and stream them to your TV, just like it's legal to make backups of your CDs on your iPod. So, effectively, the end-users aren't breaking the law either.

Re: Re: Re: Re: Re:

But that's not the reason the injunction was granted, it was granted because of this "public performance" inanity.

Besides, there's no way of knowing if Zediva hacked around CSS or actually streamed everything to the end-user, including the encryption. Given the lengths they've gone to to stay within the law, I'd say the latter is very likely.

Re: Re: Re: Re: Re: Re:

But that's not the reason the injunction was granted, it was granted because of this "public performance" inanity.

I know. I was just pointing out that making backups of your DVD's isn't all that legal.

Besides, there's no way of knowing if Zediva hacked around CSS or actually streamed everything to the end-user, including the encryption. Given the lengths they've gone to to stay within the law, I'd say the latter is very likely.

Re: Re: Re: Re: Re: Re:

Besides, there's no way of knowing if Zediva hacked around CSS or actually streamed everything to the end-user, including the encryption.

First, yes, there's a way of knowing. The obvious way of actually investigating their operations to see how their DVD players and servers are setup.

Second, the DVD player does the decrypting, and these appear to be standard DVD players with a valid license to decrypt CSS. Once the content comes out the output port of the DVD player, it is no longer encrypted.

There's no DMCA anti-circumvention case here, otherwise you can bet that would've been the argument.

Re: Re: Re: Re:

If there's a streaming right involved, it's violated by the end-user renting the equipment and playing back the DVD, not by the company that rented out the equipment.

Except that the public performance right doesn't only include making a performance, but authorizing a performance as well. So by furnishing the means, you authorize the infringement. At least, that's how I recall cases like Redd Horne resolving the issue.

However, it's perfectly legal to make backups of your DVDs onto a media server and stream them to your TV, just like it's legal to make backups of your CDs on your iPod. So, effectively, the end-users aren't breaking the law either.

If the user created the copy himself and streamed a dedicated version of it only accessible to himself, he'd fit into the Cablevision exception. Here, Zediva didn't technically adhere to the "one user, one copy" formula of Cablevision because each DVD was set up to be used multiple times. The legal formulations for this issue are ridiculously specific and fact-dependent -- like Mike said, it's copyright law desperately trying to adapt to new technically and arguably failing.

Re: Re: Re: Re: Re:

"Except that the public performance right doesn't only include making a performance, but authorizing a performance as well. So by furnishing the means, you authorize the infringement. At least, that's how I recall cases like Redd Horne resolving the issue."

Indeed, by like I said, there may not be any infringement by the users in the first place.

About Redd Horne, as far as I can tell the crucial difference is that they were not renting out the tapes and VCRs, they were doing on-demand performances in the back of the shop. That's not the case with Zediva.

Re: Re: Re: Re: Re: Re:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Given (2), Zediva must sound pretty guilty. But, right before this bit, there's an explicit exception:

''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

In contrast to the Redd Horne case ("Unlike a sale or rental, Maxwell's remained in physical control of the videotape at all time", which is why they were found to be doing performances and were not protected by first sale), Zediva stressed repeatedly that it was renting the DVD and player to each user. Their T&C should confirm this -- when the disc is in the drive and spinning, the user is legally in possession of that disc.

Re: Re: Re: Re: Re: Re: Re:

I'm actually not sure how you're applying that second excerpt, because publication is not an issue in this case [in fact, publication hasn't really that important to copyright law since 1978, other than for certain things like deposit and registration]. Zediva can stress that it is renting the DVD and player [much like Redd Horne could have, as it rented the tape to the customer before placing it in the VHS to stream], but aren't they still in physical control of the DVD and player on their premises, the customer's ability to interact with the device from afar not withstanding?

Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re:

but aren't they still in physical control of the DVD and player on their premises, the customer's ability to interact with the device from afar not withstanding?

The customer's control of the device is the whole point, not some side issue. It may be housed at Zediva's premises, but the customer is renting and controlling it. They aren't tuning into a broadcast.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

But it isn't. If you read the On Command case that Mike linked to in his original post, you'll see that it involved a hotel's movie watching system creating unauthorized transmissions even though the viewer was in control of the device that did so [through the hotel room's TV remote]. The hotel still possessed the instrumentality that created the transmission, regardless of who triggered its use. Mike calls On Command a terribly decided case, and it may well be. But that doesn't change the fact that it's the precedent the court has to work with.

Re: Re: Re: Re: Re: Re: Re:

Given (2), Zediva must sound pretty guilty.

Not at all because, if you'll notice, (2) only applies "a place specified by clause (1)". Or, at least it used to. The judge is this case has essentially decided that the limitation of places as described in (1) no longer applies and that a public place is any place with a human being in it. That's what's so jaw dropping about it.

Re: Re: Re: Re: Re: Re: Re: Re:

You missed the second half of (2) -- it applies to any place specified in (1) or to the public in general "whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." By offering its services to customers with no restriction on who can be a customer, Zediva courted the public. That's where the statute gets them.

Re: Re: Re: Re: Re: Re: Re: Re: Re:

You missed the second half of (2) -- it applies to any place specified in (1) or to the public in general

Nope, didn't miss it, it didn't apply. Unless, of course, you redefine the general public as being any human being, which is what the judge here, and now you, seem to have done. Then anything viewed by any human being becomes a public performance and everyone needs a public performance license for everything. Woo hoo, lawsuits, here we come!

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

It's not just the judge in this case who's made that interpretation [which is not quite as broad as you've intimated], but a good chunk of the case law leading up to it. I'm not advocating that this is a good or bad interpretation of what constitutes "the public" -- I'm just saying that's what the courts have done for a while now, so the judge in this case is not totally off the rails.

Re: Re: Re:

The legal difference is that Netflix DVDs involve the distribution of physical copies of the media, which is allowed under the first sale doctrine of copyright law. The streaming of the same programs, however, involves the public performance right, to which there is no first sale doctrine exemption.

Hang on... Can we define 'physical copies'? Obviously, a DVD is a physical copy. Is a book containing the entire bytecode a physical copy? What about a flash drive containing the movie? If this is then true, then one could argue that the bytecode itself is the physical copy. Thus, giving the bytecode to someone is Distribution, no? Why does it matter whether the stream of bytes is on plastic, paper, silicon, or over wires?

Unless I'm mistaken in my understanding, the distribution is not straight to someone's TV? There's a box on the other end? The 'performance' right covers projection of the material, as say via movie theater.

To put it succinctly, why is streamed bytes, over long distances, a Performance, while streamed bytes, over short distances, a Distribution? There exists no physical difference, there is still a distribution of a physical copy of the work in both instances. Is it true that if you were to withhold the length of the cable, one could not determine if the use were a Distribution or a Performance?

Re: Re: Re: Re:

A copy is essentially the work in sufficiently fixed form. This includes any form in which the work may be perceived with the aid of a machine, device, or other process. Therefore, an AVI file is as much a copy of a movie as the physical movie reel. The distribution of the work is the exchanging of that work in its fixed form, whether by physical hand-off or downloading to a hard drive. The performance of the work, conversely, is the rendering perceptible of a work. If you download a movie to your hard drive, it has been distributed to you. If you open that file, it has then been performed as well. If you stream a movie, you're performing it, but if the movie is not downloaded to your hard drive in a fixed form [and merely plays in fleeting, ephemeral form on your screen, each bit of data lost after it's shown], it is not being distributed. That is the distinction that the law has drawn.

Re: Re:

No, DVD rentals by themselves are distributions, not performances. Distribution is conveying a copy of a work, like a DVD or a digital file. Performance is actually rendering that copy visually perceptible by, for example, projecting it on a wall or streaming it on a monitor. It's not the renting that's a problem, it's that instead of sending you the copy to play yourself, they're playing it for you and retaining possession of the copy [even if they say it's been rented and is legally yours].

So, by what you stated above, Zediva was involved in distribution and not a public performance. If anyone was creating a public performance, then it was the customers in their "public" homes, so they should have been the one sued if that counts as a public performance.

That's why this ruling is so wacky. I see that you've been trying to defend it here, but even you wind up arguing against yourself.

Re: Re: Re: Re:

You can frame it technically if you'd like, that won't change how it's framed legally. Distribution is the conveyance of the file in a sufficiently fixed form. Performance is the conveyance of the file in a fleeting, ephemeral display. If Zediva had downloaded the full movie file to the user's hard drive, it would be distribution. Merely streaming it through a buffer, without sufficient fixation of the full file on the viewer's hard drive, is a performance. Certainly, the customer may have been involved in rendering a performance, but that does not change the fact that the law states so did Zediva. I'm not "defending" anything -- I'm simply explaining what the state of the law is. You may find it suspect [given your "technical framing" of the issue], but that does not change the outcome.

Re: Re: Re: Re: Re:

If Zediva had downloaded the full movie file to the user's hard drive, it would be distribution.

Zediva was uploading, not downloading. The customer was doing the downloading. You got it completely backwards, no wonder you're so confused.

Performance is the conveyance of the file in a fleeting, ephemeral display.

Which was performed by the customer after receiving it from Zediva.

Merely streaming it through a buffer, without sufficient fixation of the full file on the viewer's hard drive, is a performance.

Huh? Downloading less than a full file doesn't count as a download? Really? Do you have a citation for that assertion? Because it certainly flies in the face of many other court cases.

Certainly, the customer may have been involved in rendering a performance...

Yes, but actually holding people responsible for public performances for playing DVDs wouldn't be good for DVD sales, would it? Better pin it on someone else then.

...but that does not change the fact that the law states so did Zediva.

Ahh, the someone else. Despite the fact that they didn't, let's just say that they did. That, my friend, is what is known as a legal fiction. It is, however, a fiction nonetheless. And no amount of judicial hand waving can change that truth.

I'm not "defending" anything -- I'm simply explaining what the state of the law is.

This judge, and you, may be trying to "interpret" things a certain way, but the truth remains the truth.

You may find it suspect [given your "technical framing" of the issue], but that does not change the outcome.

True, the outcome is in the hands of those with the power to enforce it. I don't think anyone is arguing that. Still, that doesn't change what they're trying to do or make their imaginary reasoning that they trying to use to disguise it any more truthful. All I'm doing is taking apart their cover story.

Re: Re: Re: Re: Re: Re:

Pardon, I misspoke re: uploading. That doesn't change anything else about what I said, however. Additionally, you're incorrect about the performance: Zediva is the one publicly performing to the public by transmitting the video to its customers (members of the public) -- this analysis is built directly into the copyright statutes. The customer, conversely, only publicly performs the video if he allows the public to watch the transmission [whether in person or by bouncing the transmission elsewhere].

As for downloading less than the full file, that's not what I meant; I meant that if the work isn't being transferred for aggregate fixation and is only on one's hard drive for a fleeting amount of time, the portions that pass through the user's hard drive are not considered to be a copy of the work. Read the Cablevision case, where the buffer copy was not saved for more than a couple of seconds at a time and the judge thus ruled that it was not a copy of the work under the requirements of copyright.

As for the respective performances, this is not an issue of misplaced liability [like chasing after ISPs for user's alleged misconduct] -- under the delineations of copyright law, Zediva performs the work by transmission, and the user performs the work through his machine. The difference is that the user's performance isn't necessarily public (he could be watching it alone in his home), while Zediva's business structure necessarily makes its performance public (by offering the streams to any member of the public, as I've discussed throughout these threads). Call it a legal fiction if you wish -- it is the law. Again, I'm not saying I necessarily support these interpretations/fictions/what-have-you. I'm just letting you know that they exist, and that's why the courts are ruling as they do.

Re: Re: Re: Re:

As a coder, I know what you mean, but if they've just been hooking up to the signal output from standard DVD players, then the signal has already been decoded and is being sent in a TV/monitor friendly format ready for display, this would then need to be re-encoded for internet transmission.

Also, it seems to me from what DandonTRJ was saying, is that the definition of distribution lies with the physical object (DVD/DVDPlayer) leaving your possession and off the premises.

Re:

But a unique copy of the DVD is created in the DVD player's memory as it's decoded for playback... Do you need to create *another* copy? Rip the thing to a new disc image when the customer requests it, then play back from the image?

That seems like a lot of work just to satisfy the terms of the Cablevision precedent.

Re: Re:

If new disc images were created for each performance, that would probably be a violation of the reproduction right of copyright. The Cablevision court stated that the reproduction right is not violated unless the reproduction is "fixed" for more than a transient period of time; the "buffer copy" in a stream [like a remote DVR], existing for only a few seconds at a time, doesn't count, so that probably covered Zediva insofar as the digital conversion was concerned. But the rental of the DVD only covered distribution [the ability to possess and utilize the DVD], not public performance [streaming the then-rented DVD]. Mike's right when he says the courts have essentially ignored the technological equivalence at issue and are looking more at the origination of the performance. If you put the DVD in yourself and view it locally, no problem. If you authorize a fair use reproduction in the cloud and stream it back to yourself [i.e. remote DVRs in Cablevision], no problem. Problem is, Zediva was neither in the court's view: the DVDs and players were in Zediva's physical possession and they did not adhere to the combo of fair use reproduction and unique-copy playback that made Cablevision kosher. It's definitely a lot of work to meet the Cablevision standard, and in many ways a redundant pain in the ass for legitimate offerings like Amazon's cloud music service, but that's what you get with a field of law as strained and convoluted as copyright.

Re:

"It's unfortunately one of those things that kind of makes sense in pure legalese once you've studied it enough, but still runs afoul of much common sense when you step back. But then again, copyright law isn't about common sense nowadays; it's about preserving markets..."

Re:

So I buy and watch a DVD, this is perfectly legal, I hand you the DVD to watch when I'm done with it, and you need to pay public performance rights to watch the DVD I just gave you????

You really think that 'kind of' makes sense?

I got a Bridge in Brooklyn that I'm not really using any more, how would you like to purchase it so you can go jump off and get sued for a public performance of jumping?

So basically what you are saying is that you are fine when big corporations twist and interpret laws in ways they were not intended, that's just fine and part of doing business, but when it's a small company designing a business model that appears to comply with the existing laws, only to have a Judge 'reinterpret' the laws, they are doing something illegal?

Re: Re:

That's not what I said or meant, but I'm happy to reexplain: When you buy and watch a DVD, you are performing it. This is not a problem so long as you are not PUBLICLY performing it [which has set definitions]. When you give me the DVD, you are distributing. This is not a problem due to the first sale doctrine, which allows for the divesting of a legally purchased copy of a work. When I watch it, I don't need to pay for public performance rights unless I'm, well, publicly performing it [which, again, has set definitions].

And let me reiterate for the nth time in this thread that I'm not rooting for one side or the other in this fight. I think Zediva's theory is novel and am interested to see if they prevail. I have no interest in preserving the business models of legacy entertainment companies. I'm just saying that the law has, up until now, been interpreted in a certain way, and Zediva's argument may require a reinterpretation of that law in order to survive.

Length

If the wire between my DVD player and my TV is 10 feet... legal.

I'm not so sure about that, Mike. I think the legal limit might be closer to 6 feet. That's why you see so many 6 foot cables for sale. Many stores don't want to possibly get in trouble for contributory copyright infringement by selling longer cables.

Is this stealing?

"In this case, unlike Cablevision, Defendants’ customers do not produce their own unique copy of Plaintiffs’ Copyrighted Works. Instead, like On Command and Red Horne, the same DVD is used over and over again to transmit performances of Plaintiffs’ Copyrighted Works."

I guess I'm confised as to what cooralation could be drawn between this and the mantra that piracy is stealing. As has been pointed out numerous times, copying a digital work is not the same as stealing a physical object (car, paper, bike, dog, wife, etc.) But when a company tries to use the physical object and allow one person in their home to veiw it (agreeing with mike on the very convuluted way they define "public veiwing") that is also not ok. I guess the only way that I can watch any of these companies content is to go to pre-approved veiwing locations (which of course will be as inconvienient for as many people as possible), ensure that I have the required pre-screening forms filled out in triplicate to prove that I am who I say I am prior to being authorized entry. Then, after paying the application for pre-screening fee, the entrance fee, the veiwing fee, the seat fee, the entertainment fee, and the parking fee, I can finally enjoy some of Hollywood's recycled movie from 1930.

All kidding aside, it is a sad world that we live in that what the consumer wants and how the consumer wants to veiw content is blocked by the companies that create (loosely applied) content.

Just how many $100 bills did the MPAA slip this judge? I mean, look at him. He somehow managed to convince himself that the word "public" in the term "public performance" is a noun instead of an adjective. That's some seriously impressive mental gymnastics.

Re:

Re:

Customers watching one of Plaintiffs’ Copyrighted Works on their computer through Zediva’s system are not necessarily watching it in a “public place,” but those customers are nonetheless members of “the public.” .... The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute “the public” under the transmit clause.

Your honor, for clarification, using your own definition that any member of "the public" watching a performance in a private place constitutes public performance, can you also define "private performance" without using the words "hermit" or "castaway"?

How long is the cable?

How long can my cable be before I'm infringing? 11 feet? 100 feet? 30 meters? If 30 meters is OK, how about 30.000001 meters? Does the combined lengths of the connectors count? How about the internal wiring of the DVD player and the TV? If my peripherals run through a selection box or receiver, can the combined lengths of the cables (from the DVR to the box, and from the box to the TV) violate the law when the individual cables do not?

If I have the DVD in my living room but the TV in my garage, is that OK? What if the garage is detached?

If I put a DVD onto my home computer, drive to my dad's house, and stream the DVD over the Internet, is that a public performance? What if I just bring the DVD with me and play it on his player instead? The same two people are watching the same damned movie.

If my being a "member of the public" means that watching a DVD (by myself) that has been digitally recorded and stored remotely is a public performance, and if my playing a DVD in a bar (with other people) is a public performance, why isn't watching a DVD (by myself) in my home a public performance? I'm still just as much a "member of the public" for one as for the other, aren't I?

Maybe it's an ownership thing. How about if the equipment belongs to somebody else? If my daughter uses her school-provided laptop to store and play a movie, is that in violation? How about if we leave the computer at home and drive to my dad's house and stream the DVD? Is it different because we're borrowing or leasing the computer storage?

Re: How long is the cable?

If my daughter uses her school-provided laptop to store and play a movie, is that in violation? How about if we leave the computer at home and drive to my dad's house and stream the DVD?

Yes, both of those would be public performances. That's why responsible schools and businesses remove the media players from their computers. Otherwise they would need to buy public performance licenses to cover any media played on them.

Re: Re: How long is the cable?

Re: How long is the cable?

Not that I agree with the ruling, but I was using it as a thought exercise...

At first I was thinking it could be the maximum cable length before a repeater or regeneration of the signal was needed. but that doesn't work since I have used signal boosters to have a duplicate image on a screen in a other room. I am sure that is considered a public performance too.

I think the only way it would work is if the signal originated outside of premises that are under your immediate control. So if your dvd player is in somebody else's appt it is public. if the dvd player is in your appt then private.

Re: Re: How long is the cable?

I think the only way it would work is if the signal originated outside of premises that are under your immediate control. So if your dvd player is in somebody else's appt it is public. if the dvd player is in your appt then private.

The problem with that is that's not the law. You're just making stuff up.

Re: Re: Re: How long is the cable?

While playback is in the renters control, they are not the ones loading the machine, they are not actually in control of the full experience.

Who gets the disc and puts it in the machine? Does the end user to do it? Nope. It is someone else. Therefore, that is outside of the user's control. Right away, there is a third party in the transaction.

You said: "You seem to be laboring under the false belief that control can only be executed through short cables. That is incorrect."

Me: my point exactly. The length of cable argument is nothing, except that the longer the cable gets, the more it seems likely a third party will have to get involved to do the work. Third party involvement is what really kills this one, and that only happens because the playback machine is at the end of a really long cable, too far for the user to completely control.

Re: Re: Re: Re: How long is the cable?

While playback is in the renters control, they are not the ones loading the machine, they are not actually in control of the full experience.

Nor are they in "full" control of the experience when they playback the DVD at home. I suppose you've never heard of the "playback control restriction" scheme included in licensed players to make you watch commercials, "FBI Warning"s or whatever before watching the movie. If that makes it a public performance, then there sure are a lot of unlicensed public performances going on.

Who gets the disc and puts it in the machine? Does the end user to do it? Nope. It is someone else. Therefore, that is outside of the user's control. Right away, there is a third party in the transaction.

Third parties are almost always involved in playing back DVDs, unless you designed and built your own player from scratch all by yourself. I don't think anyone has ever done that. Those third parties, such as the MPEG Licensing Authority, determine what your player will and will not do (such as decrypting the disc) in response to your requests.

Me: my point exactly. The length of cable argument is nothing...

OK.

except that the longer the cable gets, the more it seems likely a third party will have to get involved to do the work.

Wait, didn't you just say that the length of the cable is nothing? Except, when it is, huh? Sigh.

Third party involvement is what really kills this one, and that only happens because the playback machine is at the end of a really long cable, too far for the user to completely control.

Re: Re: Re: Re: How long is the cable?

"While playback is in the renters control, they are not the ones loading the machine, they are not actually in control of the full experience."

So, when I go to my mom's house and pop a DVD into the player for her, that makes it a public performance? Interesting legal theory you have there, but I can't help but think that it's one that you're just making up.

Corrupt judicial system?

With more and more cases getting ruled in favor of Big Content for ever more twisted and strange reasons, I'm really starting to wonder how much these judges' lifestyles outpace their legal income. Just how well does the content industry scratch the judges' backs?

Our system is so broken... I'd love to see the actual law that makes this illegal. Corrupt/ignorant judges have WAY too much power and can create and take away rights at their own whim (as the supreme court has shown us by continually ignoring the 1st/4th/etc amendments as they see fit)

Ever wonder what it was like to live during the decline of the roman empire?

Re:

Our system is so broken... I'd love to see the actual law that makes this illegal.

There are two main bodies of law: Statutory law and case law. Statutory law is written by the legislature. Case law is written by judges. And since case law defines statutory law to mean whatever the judges say it means, judges trump the legislature.

Corrupt/ignorant judges have WAY too much power and can create and take away rights at their own whim (as the supreme court has shown us by continually ignoring the 1st/4th/etc amendments as they see fit)

The law is whatever the judges say it is and they can be pretty creative sometimes.

Re: As an aside...

Super glad I could do that! I love Techdirt and Mike's analysis of these issues, especially when it comes from an economic perspective [which is woefully absent from most law students' education, I think]; I don't always agree with it, but I definitely see both sides of the coin and think it's really important to have all voices in the debate heard. That's why I strive to explain the legal issues as impartially as possible, if only so those outside the profession have a better idea of why courts are acting in a certain way.

Just wondering, Dandon, why law has to be in legalese? I think the legal system would be a lot simpler and transparent if all laws and legal documents were written in plain language instead of legalese. I think it would cut down on the crap interpretations we sometimes get from judges like this because no one in their right mind would accept such a decision if rendered in plain language for all to see and understand.

Re:

CrushU basically nailed it; laws are trying to accomplish diametrically opposed goals by being specific enough to not cast an unnecessarily wide net, but general enough to adapt to future developments in society and prevent loopholes from popping up between the specifications. To try and capture all the niceties of the law in a statute would be an impossible task, so the legislature gives the courts a blueprint, and the courts try to apply it as best they can. To paraphrase Churchill, it's the worst system out there except for all the others.

The joys of copyright law and big media

Well heck all you have to do is look at the fact that "legally" I can rip a CD but oh we've put their CSS on the disc so now it's encryption cracking and "illegal" if you do it with a DVD.

Sorry about your luck if something happens to the disc and your kid decides to ruin it. Guess you get to buy another one.

And that's what it's all about. Buying more copies. They'd have you buying a new license for every device if they could.

This is the stupidity we live with in dealing with Hollywood content.

It is what drives many to find a way to rip the DVD anyway while waving a middle digit at the industry. No you aren't getting another $35 from me to buy a digital copy of Mad Men to watch on my iPad. Nevermind it's for personal use.

Which does beg a question too on public performance. Watching a DVD on a player you bring on an airplane flight would be a performance and you'd be breaking the law there too, heck probably have been.

They really have no idea how to interact or work with their customers other than treating them as criminals right from the start. And the more of these restrictions and demands they get made into law the more often they can claim damages for us not paying them every time we watch a movie.

Thanks to DandonTRJ for the thoughtful analysis. It certainly is hard to explain how the law works, especially to a group like the techdirt regular commentators (and Mike in particular) who only think analysis is "good" if they agree with the outcome. Kudos for the in-depth explanation of the court's ruling here.

Re:

Thanks for the kudos -- I'm glad I could help explain [or at least try to help explain] how the courts have handled this area of copyright law up until now. People taking my explanations as supporting said handling (which I by no means am) have made the effort a little exhausting, but I'm hoping it at least helps shed a little light on why this court's ruling is not as aberrant as some seem to think it is.

Re: WTF? Judge should be dis-barred

It's a public performance on Zediva's part if they offer their services to members of the public, even if those customers' viewings are done in private. Or at least, that's how copyright law is currently structured. You can see my short explanation of the multiple "performances" involved with any given broadcast here.

Zediva =/= Cablevision

There are just so many ways that the Zediva case is different from Cablevision. Take the letter "Z", for example. Zediva has the letter "Z" in their name, whereas Cablevision doesn't. Therefore, they are obviously different. Now, if Cablevision had spelled their name "CableviZion" or something similar instead, the precedent might apply. But they didn't.

So, there you go, an airtight proof that the two cases are not _identical_. Just don't ask me to further prove that the difference is really meaningful to anyone except someone looking for an excuse to claim that they're "different".

DVD in the privacy of your own home a "public performance?

Re: DVD in the privacy of your own home a "public performance?

Not exactly. With any given broadcast of a work, there are multiple "performances" involved under copyright. The broadcaster "performs" it by sending out the signal. Secondary transmitters who bounce the broadcast around also "perform" it. And the recipient machine "performs" the work to whoever is around it. In this case, there are at least two performances: Zediva's in sending the movie and the recipient customer in playing it. The recipient customer's performance, if in his own home, is a private one and non-infringing. But Zediva's performances, by merit of being offered to any member of the public at large, are considered public performances -- even if all the recipients are viewing it in private. That's where I think lay observers of this case are confused about what the court has done.

Re: Re: DVD in the privacy of your own home a "public performance?

Let's see how this works. For the price of $1.99, Zediva purchases a specific number of copies of a specific title and leases you that DVD for a period of 4 hours and an additional 4 hour lease within a 14 day period. They also lease you the use of a DVD player for non specific 4 hour blocks of time to view said DVD. They provide you a set of limited controls for your use. They then provide a dedicated output in which your own computer decodes the digital information and displays it on your screen. While you are viewing said DVD, no one else has access to its exclusive content. When your viewing is complete, the DVD is then leased to another customer. As there are only a specific number of copies of a particular title, Zediva can only lease that specific amount of DVD's at one time therefore retaining the first sale exclusion. There are no restrictions of the price of, or the amount of time of said leases. Zediva only converts it DVD players output to a virtual digital coaxial cable, and along with its limited control panel, for viewing at a remote site. By creating this virtual distribution model, Zediva therefore lowers its distribution costs and is able to provide the same content as NetFlix or RedBox or Blockbuster for less cost to the customer. I don't see any copyright infringement, just a good business plan!!

Customers?

So how is this going to get more people to buy DVDs or go to the theater? It isn't. Just one more self-defeating move that drives people away from a service that could net the studios a little bit of money, toward piracy. So dumb.

The length of the cable does not matter. The only thing that matters is the relationship between Zediva and the customers. If the customers were all friends and family they would not just be members of the public and transmitting a single instance of the physical disc might be fine. But as strangers, the customers are just members of the public and even if the customers were sitting in a chair at Zediva using a short cable, Zediva's actions would still infringe on the content owners' copyrights. Friend vs. stranger is probably a factual decision that a jury would decide if the parties disputed it.